Patrick Morrisey, W. Va. State Bar No. 11777
ATTORNEY GENERAL OF WEST VIRGINIA
Elbert Lin, W. Va. State Bar No. 12171
Solicitor General
Thomas M. Johnson, Jr., W. Va. State Bar No. 13003
Deputy Solicitor General
Counsel of Record
OFFICE OF THE ATTORNEY GENERAL
State Capitol Building 1, Room E-26
Charleston, WV 25305
Telephone: (304) 558-2021
Fax: (304) 558-0140
Email: [email protected]
Counsel for Amicus Curiae
THE STATE OF WEST VIRGINIA
Jeff Landry, La. State Bar No. 29942
ATTORNEY GENERAL OF LOUISIANA
Elizabeth Baker Murrill, La. State Bar No. 20685
Solicitor General
OFFICE OF THE ATTORNEY GENERAL
1885 N. 3rd Street
Baton Rouge, LA 70802
Telephone: (225) 326-6766
Fax: (225) 326-6773
Email: [email protected]
Counsel for Amicus Curiae
THE STATE OF LOUISIANA
UNITED STATES DISTRICT COURT
DISTRICT OF NORTHERN CALIFORNIA
City and County of San Francisco, ) Case No. 3:17-cv-00485-WHO
Plaintiff, ) Case No. 3:17-cv-00574-WHO
v. ) Case No. 3:17-cv-01535-WHO
)
Donald J. Trump, et al. ) MOTION FOR LEAVE TO FILE BRIEF
Defendants. ) AMICI CURIAE FOR STATES OF
) WEST VIRGINIA, LOUISIANA,
County of Santa Clara, ) ALABAMA, ARKANSAS, MICHIGAN,
Plaintiff, ) NEVADA, OHIO, OKLAHOMA,
v. ) SOUTH CAROLINA, AND TEXAS
) IN SUPPORT OF THE UNITED
Donald J. Trump, et al., ) STATES’ MOTIONS TO DISMISS;
Defendants. ) PROPOSED ORDER
Case 3:17-cv-00485-WHO Document 114 Filed 06/16/17 Page 1 of 7
2
City of Richmond, ) Hon. William H. Orrick
Plaintiff. )
v. )
)
Donald J. Trump, et al., )
Defendants. )
____________________________________)
MOTION FOR LEAVE TO FILE BRIEF AMICI CURIAE
The States of West Virginia, Louisiana, and eight other States hereby request permission
to file the attached amicus brief in support of the United States’ motions to dismiss the Plaintiffs’
complaints challenging the constitutionality of Section 9(a) of the President’s Executive Order
13,768, “Enhancing Public Safety in the Interior of the United States” (the “Order”), in related
actions filed by Plaintiffs the City and County of San Francisco (Case No. 3:17-cv-00485-
WHO), County of Santa Clara (Case No. 3:17-cv-00574), and City of Richmond (Case No. 3:17-
cv-01535-WHO). The proposed amicus brief is attached to this motion as Exhibit 1. A proposed
order is attached to this motion as Exhibit 2. Consistent with this Court’s Order of March 21,
2017, amici States respectfully request waiver of this Court’s rules governing admission pro hac
vice and permission to file this brief in the above-captioned matters. The United States and City
of San Francisco do not object to the filing of this motion. Amici were not able to obtain the
position of the other parties prior to this filing.
IDENTITY OF THE AMICI: Amici are the States of West Virginia, Louisiana, Alabama,
Arkansas, Michigan, Nevada, Ohio, Oklahoma, South Carolina, and Texas.
INTEREST OF THE AMICI: Amici States have two important interests in the outcome of
this litigation. First, as the chief legal officers of their States, the undersigned Attorneys General
have an important interest in complying with federal immigration law and instructing state and
local law enforcement to do the same. Sanctuary jurisdictions—cities and localities that prohibit
Case 3:17-cv-00485-WHO Document 114 Filed 06/16/17 Page 2 of 7
3
or otherwise obstruct cooperation between federal and local officials on immigration
enforcement—undermine the rule of law and deprive law enforcement of the tools necessary for
effective civil and criminal enforcement. Second, the States have an important interest in
ensuring that all federal immigration policy—including the directives in the Order—respect the
principles of separation of powers and federalism inherent in our constitutional structure.
REASON WHY BRIEF OF AMICI STATES IS DESIRABLE: Amici States have a
unique perspective as the chief law enforcement officers of their respective States. The attached
brief explains how the Order can be interpreted and applied consistent with the principles of
federalism and separation of powers in the U.S. Constitution. Amici States respectfully submit
that the brief will aid this Court in resolution of the issues presented in the motions brought by
the United States.
Dated: June 16, 2017
Respectfully submitted,
Jeff Landry
ATTORNEY GENERAL OF
LOUISIANA
Elizabeth Baker Murrill
Solicitor General
By:/s/ Elizabeth Baker Murrill
Elizabeth Baker Murrill
Solicitor General
Counsel for Amicus Curiae
THE STATE OF LOUISIANA
Patrick Morrisey
ATTORNEY GENERAL OF WEST VIRGINIA
Elbert Lin
Solicitor General
Thomas M. Johnson, Jr.
Deputy Solicitor General
Counsel of Record
By: /s/ Thomas M. Johnson, Jr.
Thomas M. Johnson, Jr.
Deputy Solicitor General
Counsel for Amicus Curiae
THE STATE OF WEST VIRGINIA
Case 3:17-cv-00485-WHO Document 114 Filed 06/16/17 Page 3 of 7
/s/ Andrew Brasher
Steve Marshall
ATTORNEY GENERAL OF ALABAMA
Andrew Brasher
Solicitor General
Counsel of Record
501 Washington Avenue
Montgomery, AL 36130
Tel: (334) 353-2609
Counsel for Amicus Curiae State of Alabama
/s/ Lee Rudofsky
Leslie Rutledge
ATTORNEY GENERAL OF ARKANSAS
Lee Rudofsky
Solicitor General
Counsel of Record
323 Center Street, Suite 400
Little Rock, AR 72201
Tel: (501) 682-5310
Counsel for Amicus Curiae State of Arkansas
/s/ Aaron D. Lindstrom
Bill Schuette
ATTORNEY GENERAL OF MICHIGAN
Aaron D. Lindstrom
Solicitor General
Counsel of Record
P.O. Box 30212
Lansing, MI 48909
Tel: (515) 373-1124
Fax: (517) 373-3042
Counsel for Amicus Curiae State of Michigan
/s/ Lawrence VanDyke
Adam Paul Laxalt
ATTORNEY GENERAL OF NEVADA
Lawrence Van Dyke
Solicitor General
Counsel of Record
100 North Carson Street
Carson City, NV 89701
Tel: (775) 684-1150
Counsel for Amicus Curiae State of Nevada
Case 3:17-cv-00485-WHO Document 114 Filed 06/16/17 Page 4 of 7
5
/s/ Eric E. Murphy
Michael DeWine
ATTORNEY GENERAL OF OHIO
Eric E. Murphy
State Solicitor
Counsel of Record
30 E. Broad Street, 17th Floor
Columbus, OH 43215
Tel: (614) 466-8980
Counsel for Amicus Curiae State of Ohio
/s/ Mithun Mansinghani
Mike Hunter
ATTORNEY GENERAL OF OKLAHOMA
Mithun Mansinghani
Solicitor General
Counsel of Record
Oklahoma Office of the
Attorney General
313 N.E. 21st Street
Oklahoma City, OK 73105
Tel: (405) 521-3921
Fax: (405) 522-0608
Counsel for Amicus Curiae State of Oklahoma
/s/ James Emory Smith, Jr.
Alan Wilson
ATTORNEY GENERAL OF SOUTH
CAROLINA
Robert D. Cook
Solicitor General
James Emory Smith, Jr.
Deputy Solicitor General
Counsel of Record
P.O. Box 11549
Columbia, SC 29211
Tel: (803) 734-3680
Fax: (803) 734-3677
Counsel for Amicus Curiae State of South
Carolina
/s/ Scott A. Keller
Ken Paxton
ATTORNEY GENERAL OF TEXAS
Scott A. Keller
Solicitor General
Counsel of Record
P.O. Box 12548
Austin, TX 78711-2548
Tel: (512) 936-1700
Counsel for Amicus Curiae State of Texas
Case 3:17-cv-00485-WHO Document 114 Filed 06/16/17 Page 5 of 7
ATTORNEY ATTESTATION
I, Thomas M. Johnson, Jr., am the ECF user whose ID and password are being used to
file this Motion for Leave to File Brief Amici Curiae for the States of West Virginia, Louisiana,
Alabama, Arkansas, Michigan, Nevada, Ohio, Oklahoma, South Carolina, and Texas. In
compliance with N.D. Cal. Civil L.R. 5-1(i)(3), I hereby attest that I have the authority to file this
document and its related exhibits and attachments on behalf of each of the signatories.
By: /s/ Thomas M. Johnson, Jr.
Thomas M. Johnson
Case 3:17-cv-00485-WHO Document 114 Filed 06/16/17 Page 6 of 7
CERTIFICATE OF SERVICE
I hereby certify that on June 16, 2017, I electronically filed the above document with the
Clerk of Court using CM/ECF which will send electronic notification of such filing to all
registered counsel.
By: /s/ Thomas M. Johnson, Jr.
Thomas M. Johnson
Case 3:17-cv-00485-WHO Document 114 Filed 06/16/17 Page 7 of 7
Patrick Morrisey, W. Va. State Bar No. 11777
ATTORNEY GENERAL OF WEST VIRGINIA
Elbert Lin, W. Va. State Bar No. 12171
Solicitor General
Thomas M. Johnson, Jr., W. Va. State Bar No. 13003
Deputy Solicitor General
Counsel of Record
OFFICE OF THE ATTORNEY GENERAL
State Capitol Building 1, Room E-26
Charleston, WV 25305
Telephone: (304) 558-2021
Fax: (304) 558-0140
Email: [email protected]
Counsel for Amicus Curiae
THE STATE OF WEST VIRGINIA
Jeff Landry, La. State Bar No. 29942
ATTORNEY GENERAL OF LOUISIANA
Elizabeth Baker Murrill, La. State Bar No. 20685
Solicitor General
OFFICE OF THE ATTORNEY GENERAL
1885 N. 3rd Street
Baton Rouge, LA 70802
Telephone: (225) 326-6766
Fax: (225) 326-6773
Email: [email protected]
Counsel for Amicus Curiae
THE STATE OF LOUISIANA
UNITED STATES DISTRICT COURT
DISTRICT OF NORTHERN CALIFORNIA
City and County of San Francisco, ) Case No. 3:17-cv-00485-WHO
Plaintiff, ) Case No. 3:17-cv-00574-WHO
v. ) Case No. 3:17-cv-01535-WHO
)
Donald J. Trump, et al. ) PROPOSED BRIEF OF AMICI CURIAE
Defendants. ) STATES OF WEST VIRGINIA,
) LOUISIANA, ALABAMA, ARKANSAS,
County of Santa Clara, ) MICHIGAN, NEVADA, OHIO,
Plaintiff, ) OKLAHOMA, SOUTH CAROLINA,
v. ) AND TEXAS
)
Donald J. Trump, et al., )
Defendants. ) Hon. William H. Orrick
Case 3:17-cv-00485-WHO Document 114-1 Filed 06/16/17 Page 1 of 17
City of Richmond, )
Plaintiff. )
v. )
)
Donald J. Trump, et al., )
Defendants. )
____________________________________)
Case 3:17-cv-00485-WHO Document 114-1 Filed 06/16/17 Page 2 of 17
TABLE OF CONTENTS
TABLE OF CONTENTS ................................................................................................................. i
TABLE OF AUTHORITIES .......................................................................................................... ii
INTEREST OF AMICI CURIAE ................................................................................................... 1
INTRODUCTION .......................................................................................................................... 2
ARGUMENT .................................................................................................................................. 4
I. The Text Of The Order Ensures That It May Only Be Applied Consistent With All
Applicable Constitutional Limitations. ............................................................................... 4
II. The Order Can Be Applied Consistent With Law Where Congress Has Validly
Authorized The Attorney General Or Secretary To Place Conditions On The States’
Receipt Of Federal Funds Under The Spending Power ...................................................... 6
III. The Order and the Act Do Not Violate The Tenth Amendment .......................................... 8
CONCLUSION ............................................................................................................................. 12
Case 3:17-cv-00485-WHO Document 114-1 Filed 06/16/17 Page 3 of 17
ii
TABLE OF AUTHORITIES
Cases
Arizona v. United States,
132 S. Ct. 2492 (2012) ........................................................................................................ 10, 11
Chamber of Commerce of the United States v. Whiting,
563 U.S. 582 (2011) .................................................................................................................. 11
City of New York v. United States,
179 F.3d 29 (2d Cir. 1999)........................................................................................................ 11
Clapper v. Amnesty Int’l USA,
133 S. Ct. 1138 (2013) ................................................................................................................ 5
Foti v. City of Menlo Park,
146 F.3d 629 (9th Cir. 1998) .................................................................................................. 6, 7
Hodel v. Virginia Surface Mining & Reclamation Ass’n,
452 U.S. 264 (1981) .................................................................................................................. 10
Hotel & Motel Ass’n of Oakland v. City of Oakland,
344 F.3d 959 (9th Cir. 2003) ...................................................................................................... 6
New York v. United States,
505 U.S. 144 (1992) .................................................................................................................... 9
Pennhurst State Sch. & Hosp. v. Halderman,
451 U.S. 1 (1981) ........................................................................................................................ 8
Printz v. United States,
521 U.S. 898 (1997) .............................................................................................................. 9, 10
Reno v. Condon,
528 U.S. 141 (2000) ............................................................................................................ 10, 12
Sabri v. United States,
541 U.S. 600 (2004) .................................................................................................................... 7
South Carolina v. Baker,
485 U.S. 505 (1988) .................................................................................................................. 10
South Dakota v. Dole,
483 U.S. 203 (1987) ............................................................................................................ 3, 7, 8
Toll v. Moreno,
458 U.S. 1 (1982) ...................................................................................................................... 11
United States v. Butler,
297 U.S. 1 (1936) ........................................................................................................................ 7
United States v. Richardson,
418 U.S. 166 (1974) .................................................................................................................... 5
United States v. Salerno,
481 U.S. 739 (1987) ................................................................................................................ 6, 7
Wash. State Grange v. Wash. State Republican Party,
552 U.S. 442 (2008) .................................................................................................................... 6
Case 3:17-cv-00485-WHO Document 114-1 Filed 06/16/17 Page 4 of 17
iii
Statutes and Constitutional Provisions
8 U.S.C. § 1373 ................................................................................................................. 2, 3, 8, 11
U.S. Const. Art. I, § 8, cl. 1......................................................................................................... 6, 7
U.S. Const. amend. X...................................................................................................................... 9
U.S. Const. Art. VI, cl. 2 ............................................................................................................... 10
Regulations
2 C.F.R. § 200.341 ...................................................................................................................... 2, 6
82 Fed. Reg. 8,799 (Jan. 25, 2017) ..................................................................................... 1, 2, 4, 6
Other Authorities
Exec. Order No. 13,768 .................................................................................................................. 2
The Attorney General, Memorandum for all Department Grant-Making Components,
Implementation of Executive Order 13768 ................................................................................. 5
What Spending Clause? (Or the President’s Paramour): An Examination of the Views of
Hamilton, Madison, and Story on Article I, Section 8, Clause I of the United States
Constitution, 33 J. Marshall L. Rev. 81 (Fall 1999) .................................................................... 9
Case 3:17-cv-00485-WHO Document 114-1 Filed 06/16/17 Page 5 of 17
1
INTEREST OF AMICI CURIAE
The States of West Virginia, Louisiana, and eight other States1 respectfully submit this
brief of amici curiae in support of the United States’ motions to dismiss the Plaintiffs’ complaints
challenging the constitutionality of Section 9(a) of the President’s Executive Order 13,768,
“Enhancing Public Safety in the Interior of the United States” (the “Order”). Exec. Order No.
13,768, 82 Fed. Reg. 8,799 (Jan. 25, 2017).
Amici States have two important interests in the outcome of this litigation. First, as the
chief legal officers of their States, the undersigned Attorneys General have an important interest
in complying with federal immigration law and instructing state and local law enforcement to do
the same. Sanctuary jurisdictions—cities and localities that prohibit or otherwise obstruct
cooperation between federal and local officials on immigration enforcement—undermine the rule
of law and deprive law enforcement of the tools necessary for effective civil and criminal
enforcement. Indeed, sanctuary jurisdictions can cause harm to neighboring States—even States
that have no sanctuary jurisdictions—by making it easier for people who are not lawfully in this
country, and who have committed civil or criminal offenses, to evade capture by law enforcement
and to travel out-of-state. For example, the City of Baltimore, which has adopted sanctuary city
policies, is a significant source of illegal drugs for the Eastern Panhandle of West Virginia.
Sanctuary policies deprive law enforcement in Baltimore and similar jurisdictions of important
tools that could assist with preventing out-of-state drug trafficking. Second, the States have an
important interest in ensuring that all federal immigration policy—including the directives in the
Order—respect the principles of separation of powers and federalism inherent in our constitutional
1 Amici are the States of West Virginia, Louisiana, Alabama, Arkansas, Michigan, Nevada, Ohio,
Oklahoma, South Carolina, and Texas.
Case 3:17-cv-00485-WHO Document 114-1 Filed 06/16/17 Page 6 of 17
2
structure.
As further set forth below, amici States respectfully submit that Plaintiffs’ facial challenge
to the Order must fail because there are ways in which Congress and the President can enforce the
Order while respecting the role of the States in our constitutional structure.
INTRODUCTION
In this case, Plaintiffs have mounted a pre-enforcement, facial challenge to an Executive
Order concerning immigration enforcement—an area where Congress and the President have
considerable power. The Order directs the Attorney General and Secretary of the Department of
Homeland Security (“Secretary”), “in their discretion and to the extent consistent with law”
(emphasis added), to “ensure that jurisdictions that willfully refuse to comply with 8 U.S.C. § 1373
(sanctuary jurisdictions) are not eligible to receive Federal grants. . . .” Exec. Order No. 13,768,
82 Fed. Reg. at 8,801. The statute cited in the Order, 8 U.S.C. § 1373 (the “Act”), prevents States
from prohibiting local law enforcement from cooperating with federal officials. Plaintiffs bear the
heavy burden of showing that the Order has caused them present injury and is unconstitutional in
all its applications.
Plaintiffs cannot meet this burden. As an initial matter, the United States has not yet applied
this Order to deny Plaintiffs any specific grant award, and the United States could not terminate or
suspend an award without providing Plaintiffs with notice, an opportunity to object, and the right
to appeal, as required by federal regulations. See, e.g., 2 C.F.R. § 200.341. Therefore, Plaintiffs
cannot show that they will be harmed by some future, speculative application of the Order.
Nor can Plaintiffs show that the Order, which applies “only to the extent consistent with
law,” would be unconstitutional in all its applications. To the contrary, as both Plaintiffs and the
United States acknowledge, the federal government may validly place conditions on the States’
Case 3:17-cv-00485-WHO Document 114-1 Filed 06/16/17 Page 7 of 17
3
receipt of federal grant money as long as it complies with the conditions set forth by the United
States Supreme Court in South Dakota v. Dole, 483 U.S. 203 (1987). See, e.g., United States Mem.
Supp. Mot. to Dismiss 16–20, ECF No. 111; 2d Am. Compl. ¶¶ 122–32, ECF No. 105.2 That is,
Congress must (1) legislate to promote the general welfare, (2) ensure that the States have clear
notice of the relevant grant conditions, (3) ensure that the conditions relate to the purposes for
which the grant issues, and (4) ensure that the inducement to accept the grant is non-coercive.
While amici States take no position on whether any existing grant program satisfies these criteria,
the Dole factors provide a well-established path for the federal government to attach conditions to
grants to the States that would be “consistent with law.” Plaintiffs therefore cannot show that the
Order would be unconstitutional in all its applications, and if the federal government were to
exceed its power in denying States particular sources of funding, Plaintiffs would have an
opportunity to mount an as-applied challenge at that time.
Plaintiffs also argue that the Order violates the Tenth Amendment by instructing the
Attorney General to “take appropriate action” against States that violate the Act—8 U.S.C. § 1373.
See, e.g., 2d Am. Compl. ¶¶ 149–53, ECF No. 105. This challenge is also premature, as the United
States has taken no action against Plaintiffs, and if it did, Plaintiffs would have the opportunity to
bring an as-applied challenge. In any event, neither the Order nor the Act present Tenth
Amendment problems.
The Tenth Amendment prohibits the federal government from conscripting States into
administering federal programs. But to the extent that the States voluntarily accept federal grant
money in exchange for compliance with federal immigration law, no such conscription has
occurred. In addition, the Act itself does not require state law enforcement officers to do anything.
2 All ECF citations are to the docket for case number 3:17-cv-00485-WHO.
Case 3:17-cv-00485-WHO Document 114-1 Filed 06/16/17 Page 8 of 17
4
Rather, it merely displaces state laws that directly conflict by prohibiting voluntary
communications between such officers and federal officials, while leaving ample room for the
States to take other actions to support and promote federal immigration policies.
For all these reasons, the United States’ motions to dismiss should be granted.
ARGUMENT
I. The Text Of The Order Ensures That It May Only Be Applied Consistent With
All Applicable Constitutional Limitations
As an initial matter, the text of the Order itself acknowledges important caveats that legally
cabin the President’s authority and ensure executive officers can only act in a manner consistent
with the constitutional requirements of separation of powers and federalism.
First, Section 9(a) of the Order only refers to the Attorney General and Secretary, and
therefore, can only apply to grant programs administered by those two cabinet officers.
Specifically, the Order directs that “the Attorney General and the Secretary . . . shall ensure that
jurisdictions that willfully refuse to comply with [the Act] are not eligible to receive Federal grants,
except as deemed necessary for law enforcement purposes by the Attorney General or the
Secretary.” 82 Fed. Reg. at 8,801 (Emphases added.) Therefore, the Order could not be interpreted,
for example, to deny States federal dollars disbursed under unrelated federal programs,
administered by other federal departments or agencies, such as funds for education, highways, or
Medicaid.
The Attorney General’s Memorandum interpreting the scope of the Order confirms this
narrow scope. In that document, the Attorney General states that the Order “will be applied solely
to federal grants administered by the Department of Justice or the Department of Homeland
Case 3:17-cv-00485-WHO Document 114-1 Filed 06/16/17 Page 9 of 17
5
Security, and not to other sources of federal funding.”3 The Attorney General’s plausible
interpretation should carry significant weight in the context of a facial challenge, where Plaintiffs
cannot show actual injury from some more farfetched application. See Clapper v. Amnesty Int’l
USA, 133 S. Ct. 1138, 1147 (2013) (hypothetical future harm that was not certainly impending
insufficient to confer standing); United States v. Richardson, 418 U.S. 166, 172 (1974). Should
the United States ever apply the Order in some other context, Plaintiffs could seek injunctive relief
when they challenge the Order as applied.
Second, the Order repeatedly makes clear that the Attorney General and Secretary can only
deny eligibility to grant recipients as permitted by law. Section 9 of the Order first sets forth the
“policy of the executive branch to ensure, to the fullest extent of the law, that a State, or a political
subdivision of a State, shall comply with” the Act. (Emphasis added.) Section 9(a) further states
that the Attorney General and Secretary can only make eligibility determinations “to the extent
consistent with law.” Similarly, in determining what qualifies as a sanctuary jurisdiction, the
cabinet officers must act only “to the extent consistent with law.” Further, because the Order only
applies “to the extent consistent with law,” the Attorney General noted in his Memorandum that it
“does not call for the imposition of grant conditions that would violate any applicable
constitutional or statutory limitation.”4 Nor does the Order “purport to expand the existing
statutory or constitutional authority of the Attorney General and the Secretary . . . in any respect.”
Id. at 2. Finally, the Memorandum provides that the Order will not apply except in circumstances
3 The Attorney General, Memorandum for all Department Grant-Making Components,
Implementation of Executive Order 13768, Enhancing Public Safety in the Interior of the United
States 1 (May 22, 2017). 4 See supra n.3 at 1–2.
Case 3:17-cv-00485-WHO Document 114-1 Filed 06/16/17 Page 10 of 17
6
where States have “notice of their obligation[s]” under the law. Id.
Therefore, both the Order’s text and the Memorandum expressly limit the Order’s reach to
constitutional applications. And, as noted above, any party adversely affected by a particular
application of the Order has an opportunity for notice, hearing, and a right to appeal under federal
law. See, e.g., 2 C.F.R. § 200.341. As explained below, Congress and the President have tools
available to apply the Order consistently with the U.S. Constitution.
II. The Order Can Be Applied Consistent With Law Where Congress Has Validly
Authorized The Attorney General Or Secretary To Place Conditions On The
States’ Receipt Of Federal Funds Under The Spending Power
Plaintiffs claim that the Order is unconstitutional because the President has purported to
place a new condition on the States’ receipt of federal funds—compliance with the Act—that the
federal government has not validly authorized. See, e.g., 2d Am. Compl. ¶ 152–53, ECF No. 105.
But as Plaintiffs themselves acknowledge (see id.), Congress may place conditions on the States’
receipt of federal funds, “consistent with law,” pursuant to the “spending power” located in Article
I, Section 8, clause 1 of the U.S. Constitution.
In order to mount a successful facial challenge to the Act, Plaintiffs must show that “the
law is unconstitutional in all of its applications.” Wash. State Grange v. Wash. State Republican
Party, 552 U.S. 442, 449 (2008). “[O]utside the context of the First Amendment, ‘the challenger
must establish that no set of circumstances exists under which the [statute] would be valid.’” Hotel
& Motel Ass’n of Oakland v. City of Oakland, 344 F.3d 959, 971 (9th Cir. 2003) (quoting United
States v. Salerno, 481 U.S. 739, 745 (1987)); see also Foti v. City of Menlo Park, 146 F.3d 629,
635 (9th Cir. 1998) (statute is facially unconstitutional if it would be invalid “in every conceivable
application”). Here, Plaintiffs cannot meet the high hurdle of showing that the Order, which must
be administered “consistent with law,” would be unconstitutional in “every conceivable
Case 3:17-cv-00485-WHO Document 114-1 Filed 06/16/17 Page 11 of 17
7
application” (Foti, 146 F.3d at 635) or in every “set of circumstances” (Salerno, 481 U.S. at 745).
To the contrary, there is a well-established path for the federal government to impose valid grant
conditions on the States.
Supreme Court jurisprudence has interpreted the Taxing Clause of Article I, Section 8 of
the Constitution, sometimes referred to as the Spending Clause, as the source of an implicit power
for Congress to appropriate funds. See, e.g., Dole, 483 U.S. at 206; Sabri v. United States, 541
U.S. 600, 605 (2004). The text of this provision, however, refers only to the power to tax, not the
power to spend. See U.S. Const. Art. I, § 8, cl. 1 (“The Congress shall have Power To lay and
collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence
and general Welfare of the United States. . . .”). Therefore, since the Founding, there has been
debate over whether, and to what extent, this provision could serve as a basis for Congress to
appropriate money to accomplish objects that it could not pursue under other enumerated powers.5
Under the modern view adopted by the Supreme Court, “the power of Congress to
authorize expenditure of public moneys for public purposes is not limited by the direct grants of
legislative power found in the Constitution.” United States v. Butler, 297 U.S. 1, 66 (1936). But
because affording this implied power to Congress raises significant federalism concerns, the
Supreme Court has placed important limitations on this power—sometimes referred to as the Dole
factors. For example, Congress must in fact legislate in pursuit of the “general welfare,” the grant
conditions must be related to the federal interest in the particular national projects, and the financial
inducement offered by Congress cannot be coercive. See Dole, 483 U.S. at 207–11. And, because
“legislation enacted pursuant to the spending power is much in the nature of a contract, . . . [t]he
5 See Jeffrey T. Renz, What Spending Clause? (Or the President’s Paramour): An Examination of
the Views of Hamilton, Madison, and Story on Article I, Section 8, Clause I of the United States
Constitution, 33 J. Marshall L. Rev. 81, 103–06 (Fall 1999).
Case 3:17-cv-00485-WHO Document 114-1 Filed 06/16/17 Page 12 of 17
8
legitimacy of Congress’ power to legislate under the spending power . . . rests on whether the State
knowingly accepts the terms of the ‘contract.’” Pennhurst State Sch. & Hosp. v. Halderman, 451
U.S. 1, 17 (1981); see also Dole, 483 U.S. at 211. “Accordingly, if Congress intends to impose a
condition on the grant of federal moneys, it must do so unambiguously.” Pennhurst, 451 U.S. at
17. Whenever Congress acts pursuant to its implied spending power, it must adhere to these
criteria.
While amici take no position on whether any existing grant program meets these criteria,
the Dole framework provides a constitutional mechanism for Congress to validly authorize the
Attorney General or Secretary to administer a grant program that conditions receipt of federal
dollars on compliance with certain provisions of federal immigration law. Because Congress and
the President are thus able to act in a manner that would permit the Order to be applied “consistent
with law,” Plaintiffs’ pre-enforcement, facial challenge to the constitutionality of the Order must
fail.
III. The Order and the Act Do Not Violate The Tenth Amendment
Plaintiffs also argue that the Order violates the Tenth Amendment by instructing the
Attorney General to “take appropriate action” against States that violate 8 U.S.C. § 1373. See, e.g.,
2d Am. Compl. ¶¶ 149–52, ECF No. 105. This too is incorrect. While the Tenth Amendment
prohibits the federal government from compelling state and local officials to enact or enforce
federal programs, the Order at most suggests that States will be offered the opportunity to
voluntarily accept certain federal grant money in exchange for compliance with the Act. The Order
was issued in the context of state and local officials adopting policies that prohibit cooperation
with immigration officials, in violation of the Act, which neither the current nor the prior
Administrations deemed permissible. Providing States with voluntary inducements to comply
Case 3:17-cv-00485-WHO Document 114-1 Filed 06/16/17 Page 13 of 17
9
with federal law does not raise problems of unlawful commandeering.
Nor does the Act itself violate the Tenth Amendment. Instead, the Act merely displaces or
preempts state laws that prohibit localities or local law enforcement officials from voluntarily
communicating with federal officials. The Act does this to further the goals of a comprehensive
federal immigration scheme—the Immigration and Nationality Act—that falls within Congress’s
power to create a uniform rule of naturalization. The Act is therefore consistent with both the
Supremacy Clause and the Tenth Amendment.
A. The Tenth Amendment provides that the “powers not delegated to the United States by
the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the
people.” U.S. Const. amend. X. Under that amendment, “Congress cannot compel the States to
enact or enforce a federal regulatory program.” Printz v. United States, 521 U.S. 898, 935 (1997).
In addition, “Congress cannot circumvent that prohibition by conscripting the State[s’] officers
directly.” Id.
These principles protect the Constitution’s system of dual sovereignty, in which the federal
government and the States each remain politically accountable to the people for their own actions.
For example, in New York v. United States, Congress directed the States either to take possession
of nuclear waste or to regulate the waste according to Congress’s specific instructions. New York
v. United States, 505 U.S. 144, 153–54 (1992). The Court invalidated this regime because by
forcing the States to regulate according to Congress’s demands, lines of political accountability
become unclear: “[I]t may be state officials who will bear the brunt of public disapproval, while
the federal officials who devised the regulatory program may remain insulated from the electoral
ramifications of their decision.” Id. at 169.
Similarly, the statute in Printz required state law enforcement to conduct background
Case 3:17-cv-00485-WHO Document 114-1 Filed 06/16/17 Page 14 of 17
10
checks in connection with the transfer of handguns. 521 U.S. at 903. By conscripting state law
enforcement officials into federal service, the law invalidated in Printz enabled members of
Congress to “take credit for ‘solving’ problems without having to ask their constituents to pay for
the solutions with higher federal taxes,” while putting States “in the position of taking the blame
for [the program’s] burdensomeness and for its defects.” Id. at 930. This blurring of political lines
is precisely what the Tenth Amendment was designed to avoid.
B. If Congress acts within these constitutional boundaries, it may enact legislation pursuant
to its enumerated grants of power that become “the Supreme Law of the Land” and displace
inconsistent state law. U.S. Const. Art. VI, Cl. 2. To displace state law, Congress must make its
intent to preempt clear, which it can do most directly by “enact[ing] a statute containing an express
preemption provision.” Arizona v. United States, 132 S. Ct. 2492, 2500–01 (2012).
“Although such congressional enactments obviously curtail or prohibit the States’
prerogatives to make legislative choices respecting subjects the States may consider important, the
Supremacy Clause permits no other result.” Hodel v. Virginia Surface Mining & Reclamation
Ass’n, 452 U.S. 264, 290 (1981). Thus, the Supreme Court has rejected Tenth Amendment
challenges where Congress has merely chosen to “regulate[] state activities” by, for instance,
prohibiting States from issuing unregistered bonds in furtherance of a federal regime discouraging
tax evasion. South Carolina v. Baker, 485 U.S. 505, 514 (1988). Similarly, the Court upheld a law
prohibiting States from selling information obtained from motor vehicle records in furtherance of
a federal regulatory scheme intended to protect the privacy of drivers. Reno v. Condon, 528 U.S.
141, 151 (2000).
C. Applying these principles here, the Act plainly does not constitute unlawful
commandeering under the Tenth Amendment.
Case 3:17-cv-00485-WHO Document 114-1 Filed 06/16/17 Page 15 of 17
11
The Act provides, in relevant part, that a State “may not prohibit, or in any way restrict,
any government entity or official from sending to, or receiving from, the Immigration and
Naturalization Service information regarding the citizenship or immigration status, lawful or
unlawful, of any individual.” 8 U.S.C. § 1373. This is a valid exercise of Congress’s power to
regulate immigration. See, e.g., City of New York v. United States, 179 F.3d 29, 34–35 (2d Cir.
1999) (rejecting a claim that 8 U.S.C. § 1373 constituted unconstitutional commandeering). The
Supreme Court has recognized that “[t]he Government of the United States has broad, undoubted
power over the subject of immigration and the status of aliens.” Arizona, 132 S. Ct. at 2498. This
power rests on Congress’s power to “establish an uniform Rule of Naturalization,” and its
“inherent power as sovereign to control and conduct relations with foreign nations,” Id. (quoting
Toll v. Moreno, 458 U.S. 1, 10 (1982)). Further, the means selected by Congress—displacement
of state law—furthers the purposes of the comprehensive federal regime by facilitating
communication between state and local officials on matters relating to citizenship and immigration
status.6 See, e.g., id. at 2508 (“Consultation between federal and state officials is an important
feature of the immigration system.”) (discussing 8 U.S.C. § 1373); City of New York, 179 F.3d at
35 (“[S]tates do not retain under the Tenth Amendment an untrammeled right to forbid all
6 Of course, States are not prohibited from creating their own laws to implement section 1373 that
are consistent with the aims of section 1373. The language in the federal immigration-information
sharing provisions reflect “a congressional intention to displace inconsistent law.” Relationship
Between Illegal Immigration Reform and Immigrant Responsibility Act of 1996 and Statutory
Requirement for Confidentiality of Census Information, 23 Op. O.L.C. Supp., at 7 (May 18, 1999),
http://www.justice.gov/sites/default/files/olc/opinions/attachments/2014/11/10/1999-05-18-
census-confidentiality.pdf (emphasis added). And Congress has not even attempted to enter the
field of appropriate enforcement mechanisms for section 1373, meaning state law penalties could
not possibly be preempted. Thus, States are free to create their own enforcement mechanisms to
promote compliance with section 1373. See, e.g., Chamber of Commerce of the United States v.
Whiting, 563 U.S. 582, 606–07 (2011) (holding that a state could tailor specific sanctions for the
violation of federal immigration laws in the absence of congressional prohibition on those
sanctions).
Case 3:17-cv-00485-WHO Document 114-1 Filed 06/16/17 Page 16 of 17
12
voluntary cooperation by state or local officials with particular federal programs.”).
Unlike in Printz, for example, where local law enforcement were required to conduct
background checks, the Act “does not require the States in their sovereign capacity to regulate
their own citizens,” and “does not require state officials to assist in the enforcement of federal
statutes regulating private individuals.” Reno, 528 U.S. at 151. Rather, the Act merely prevents
States from prohibiting local law enforcement from cooperating voluntarily with the federal
government. Under the Supremacy Clause, the Act displaces any state policy choice that would be
inconsistent with this comprehensive federal regime within Congress’s enumerated powers—
namely, the choice to ensure the enforcement of this Nation’s immigration laws.
CONCLUSION
For the foregoing reasons, the United States’ motions to dismiss should be granted.
Dated: June 16, 2017
Respectfully submitted,
Jeff Landry ATTORNEY GENERAL OF LOUISIANA
Elizabeth Baker Murrill
Solicitor General
By: /s/ Elizabeth Baker Murrill
Elizabeth Baker Murrill
Solicitor General
Counsel for Amicus Curiae
THE STATE OF LOUISIANA
Patrick Morrisey
ATTORNEY GENERAL OF WEST VIRGINIA
Elbert Lin
Solicitor General
Thomas M. Johnson, Jr.
Deputy Solicitor General
Counsel of Record
By: /s/ Thomas M. Johnson, Jr.
Thomas M. Johnson, Jr.
Deputy Solicitor General
Counsel for Amicus Curiae
THE STATE OF WEST VIRGINIA
Case 3:17-cv-00485-WHO Document 114-1 Filed 06/16/17 Page 17 of 17
Patrick Morrisey, W. Va. State Bar No. 11777
ATTORNEY GENERAL OF WEST VIRGINIA
Elbert Lin, W. Va. State Bar No. 12171
Solicitor General
Thomas M. Johnson, Jr., W. Va. State Bar No. 13003
Deputy Solicitor General
Counsel of Record
OFFICE OF THE ATTORNEY GENERAL
State Capitol Building 1, Room E-26
Charleston, WV 25305
Telephone: (304) 558-2021
Fax: (304) 558-0140
Email: [email protected]
Counsel for Amicus Curiae
THE STATE OF WEST VIRGINIA
Jeff Landry, La. State Bar No. 29942
ATTORNEY GENERAL OF LOUISIANA
Elizabeth Baker Murrill, La. State Bar No. 20685
Solicitor General
OFFICE OF THE ATTORNEY GENERAL
1885 N. 3rd Street
Baton Rouge, LA 70802
Telephone: (225) 326-6766
Fax: (225) 326-6773
Email: [email protected]
Counsel for Amicus Curiae
THE STATE OF LOUISIANA
UNITED STATES DISTRICT COURT
DISTRICT OF NORTHERN CALIFORNIA
City and County of San Francisco, ) Case No. 3:17-cv-00485-WHO
Plaintiff, ) Case No. 3:17-cv-00574-WHO
v. ) Case No. 3:17-cv-01535-WHO
)
Donald J. Trump, et al. )
Defendants. ) ORDER
)
County of Santa Clara, )
Plaintiff, )
v. )
)
Donald J. Trump, et al., )
Defendants. ) Hon. William H. Orrick
Case 3:17-cv-00485-WHO Document 114-2 Filed 06/16/17 Page 1 of 2
City of Richmond, )
Plaintiff. )
v. )
)
Donald J. Trump, et al., )
Defendants. )
____________________________________)
ORDER
Good cause appearing, the Motion of Amici States of West Virginia, Louisiana,
Alabama, Arkansas, Michigan, Nevada, Ohio, Oklahoma, South Carolina, and Texas for leave to
file a brief in support of the United States’ motions to dismiss the Plaintiffs’ complaints
challenging the constitutionality of Section 9(a) of the President’s Executive Order 13,768,
“Enhancing Public Safety in the Interior of the United States,” is hereby GRANTED.
IT IS SO ORDERED.
Dated: _________________ _________________________________
Hon. William H. Orrick
United States District Judge
Case 3:17-cv-00485-WHO Document 114-2 Filed 06/16/17 Page 2 of 2